1. The author of the
communication (dated 20 June 1988) is John Campbell, a Jamaican citizen at
the time of submission awaiting execution at St. Catherine District Prison,
Jamaica. He claims that his rights under the International Covenant on Civil
and Political Rights have been violated by Jamaica, without specifying which
provisions of the Covenant he considers to have been violated.

FACTS AS SUBMITTED

2.1 The author states that
after a marital argument on 2 December 1980, both he and his wife sustained
burns. The wife was hospitalized and the author taken into custody, although
the wife had not accused him of intentionally hurting her. On 3 December
1980, the investigating officer formally charged him with assault. On 13
December 1980, his wife died of pneumonia in the hospital.

2.2 Subsequently, the
author was charged with murder, although, according to him, his wife had
consistently refused to accuse him of injuring her intentionally. This was
apparently corroborated by the investigating officer in his testimony before
the Circuit Court. At the preliminary inquiry, the author's 10-year-old son,
Wayne, accused his father of having intentionally injured the mother. The
eldest son, Ralston, testified that he was asleep when the event occurred.
Both statements, according to the author, were false.

2.3 In June 1983 the
author went on trial before the Circuit Court of Kingston. The legal aid
attorney assigned to the case allegedly made a number of serious errors
which contributed to the author's conviction. At the start of the trial, the
author's son, Wayne, allegedly told the court that he did not see his father
do anything and had no questions to answer. Since Wayne did not alter this
statement after several searching questions from both the prosecutor and the
judge, the judge allegedly threatened him with detention if he refused to
answer. At the end of the first day of the trial, the author's son was in
fact brought to the police headquarters and detained overnight. Upon
resumption of the trial the next morning, the judge and the prosecutor
resumed their questioning of the son; the latter, however, still refused to
answer, and as a consequence, the judge adjourned. Upon resumption of the
trial, the same scenario repeated itself, and Wayne allegedly broke down and
testified against his father. The Circuit Court found the author guilty as
charged and sentenced him to death. On 11 June 1985, the Court of Appeal
dismissed his appeal.

2.4 Shortly after the
rejection of the appeal, a representative of the Jamaica Council for Human
Rights informed the author that Wayne had made a written statement revoking
his testimony during the trial. Wayne stated that, on 2 December 1980, his
father came home drunk and that a quarrel ensued between him and his mother.
Apparently, in the course of the altercation, the deceased doused herself
with kerosene oil and set herself ablaze with a match, given to her by the
author. The author then ran out of the house, and his wife jumped into a
cistern of water adjoining the house, in an attempt to seek relief from the
burns sustained. She was taken to the hospital, where she died of pneumonia,
10 days later. In his written statement Wayne explains that he had
previously made a statement to the effect that his father had poured the
kerosene on his mother and set it alight, because he had blamed his father
for his mother's death. Moreover, Wayne claims that he had been intimidated
by the judge's attitude towards him during the trial, when he tried to alter
his previous statement. In this context, he states: "I thought that if I
changed the statement I would be sent to prison. This was when I gave
evidence against Dad."

COMPLAINT

3.1 The author claims that
he was denied a fair trial, and that irregularities occurred throughout the
judicial proceedings in his case. In particular, he submits that his legal
representation was inadequate. During the preliminary investigation, his
legal aid lawyer tried to persuade him to enter a plea of manslaughter,
which the prosecution allegedly was willing to accept. The author refused
and asked the court to assign another lawyer to the case; his request was
granted. During the trial, his lawyer allegedly did not question the judge
why he refused to accept Wayne's testimony that he had not witnessed the
incident, why he had to enter a second plea, why Wayne had been remanded in
custody for one day, and why he also had to take the oath a second time. The
lawyer allegedly disregarded his complaints concerning the conduct of the
trial. According to the author, the lawyer, when cross-examining Wayne, did
not pose the appropriate questions and did not take up the opportunity
afforded him by the judge, who asked if he had anything to say after the
jury had returned without a verdict and with a request for more information.
The author further claims that his lawyer should have objected when the
judge prevented the author from continuing his testimony. No witnesses were
sought to testify on the author's behalf.

3.2 With respect to the
circumstances of the appeal, the author states that although he was informed
that a legal aid lawyer had been assigned to him for the purpose, he only
learned of his name after the appeal had been dismissed. He claims that he
does not know whether he was in fact represented by his attorney during the
hearing of the appeal. All his written requests for clarifications to his
attorney went unanswered.

3.3 With regard to the
requirement of exhaustion of domestic remedies, the author claims that he
has unsuccessfully requested assistance from the Jamaica Council for Human
Rights to file a petition for special leave to appeal to the Judicial
Committee of the Privy Council. He further indicates that, in spite of
numerous requests addressed to the lawyer who represented him before the
Circuit Court and to the Jamaica Council for Human Rights, he has not
succeeded in obtaining the written judgements in his case. On 4 December
1990, the Secretariat requested the author to indicate whether a written
judgement in the case had been issued by the Court of Appeal, and whether he
had taken any further steps to petition the Judicial Committee of the Privy
Council. In his reply, the author confirms that in spite of numerous
requests to the Registrar of the Supreme Court for the written judgements,
including the judgement of the Court of Appeal, he has still not been able
to obtain them.

STATE PARTY'S OBSERVATIONS

4. In its only
submission, the State party contended that the communication was
inadmissible on the ground of non-exhaustion of domestic remedies, since the
author could still petition the Judicial Committee of the Privy Council for
special leave to appeal, pursuant to section 110 of the Jamaican
Constitution.

COMMITTEE'S DECISION ON
ADMISSIBILITY

5.1 During its forty-first
session the Committee considered the admissibility of the communication. It
considered that the author's failure to petition the Judicial Committee of
the Privy Council could not be attributed to him, since the relevant court
documents had not been made available to him, thereby frustrating his
attempts to have his case entertained by the Judicial Committee.

5.2 Inasmuch as the
author's claims related to the review and the evaluation of evidence, the
communication was declared inadmissible under article 3 of the Optional
Protocol. The Committee, however, considered that the author's allegations
that his son was detained in order to force him to testify against him and
that he was unrepresented during the hearing of his appeal should be
considered on the merits. Accordingly, the Committee declared the
communication admissible inasmuch as it might raise issues under article 14,
paragraphs 1 and 3 (d) of the Covenant.

EXAMINATION OF THE MERITS

6.1 The Committee has
considered the communication in the light of all the information made
available to it by the parties, as required under article 5, paragraph 1, of
the Optional Protocol. The Committee regrets the absence of cooperation by
the State party regarding the substance of the matter under consideration.
Article 4, paragraph 2, of the Optional Protocol enjoins a State party to
investigate in good faith all the allegations of violations of the Covenant
made against it and to make available to the Committee all the information
at its disposal. In the absence of any State party submission on the merits
of the case, due weight must be given to the author's allegations, to the
extent that they have been substantiated.

6.2 In respect of the
author's claim that he was not properly represented during the hearing of
his appeal, the Committee notes with concern that the author was not
notified of the name of his court-appointed lawyer until after the appeal
was dismissed. This effectively prevented the author from consulting with
his lawyer and from giving him instructions in preparation of the appeal. In
the circumstances the Committee finds a violation of article 14, paragraph 3
(d), of the Covenant.

6.3 As regards the
author's claim that his son Wayne was detained in order to force him to
testify against him, the Committee observes that this is a grave allegation,
which the author has endeavoured to substantiate, and which is corroborated
by his son's statement. In the absence of any information from the State
party, the Committee bases its decision on the facts as provided by the
author.

6.4 Article 14 of the
Covenant gives everyone the right to a fair and public hearing in the
determination of a criminal charge against him; an indispensable aspect of
the fair trial principle is the equality of arms between the prosecution and
the defence. The Committee observes that the detention of witnesses in view
of obtaining their testimony is an exceptional measure, which must be
regulated by strict criteria in law and in practice. It is not apparent from
the information before the Committee that special circumstances existed to
justify the detention of the author's minor child. Moreover, in the light of
his retraction, serious questions arise about possible intimidation and
about the reliability of the testimony obtained under these circumstances.
The Committee therefore concludes that the author's right to a fair trial
was violated.

6.5 The Committee is of
the opinion that the imposition of a sentence of death upon conclusion of a
trial in which the provisions of the Covenant have not been respected
constitutes, if no further appeal against the sentence is possible, a
violation of article 6 of the Covenant. As the Committee noted in its
General Comment 6 (16), the provision that a sentence of death may be
imposed only in accordance with the law and not contrary to the provisions
of the Covenant implies that "the procedural guarantees therein prescribed
must be observed, including the right to a fair hearing by an independent
tribunal, the presumption of innocence, the minimum guarantees for the
defence, and the right to review [of conviction and sentence] by a higher
tribunal". [FN1] In the present case, since the final sentence of death was
passed without having met the requirements for a fair trial set out in
article 14, it must be concluded that the right protected by article 6 of
the Covenant has been violated.

7. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose a violation of articles 6 and 14,
paragraphs 1 and 3 (d), of the International Covenant on Civil and Political
Rights.

8. The Committee is of
the view that Mr. John Campbell is entitled to an appropriate remedy. In
this case, as the Committee finds that Mr. Campbell did not receive a fair
trial, the Committee considers that the appropriate remedy entails release.
The State party is under an obligation to ensure that similar violations do
not occur in the future.

9. The Committee wishes
to receive information, within 90 days, from the State party in respect of
the Committee's views.

APPENDIX

INDIVIDUAL OPINION SUBMITTED BY
MR. BERTIL WENNERGREN, PURSUANT

TO RULE 94, PARAGRAPH 3, OF THE
COMMITTEE'S RULES OF PROCEDURE

I concur with the Committee's
findings. However, my reasons for finding a violation of the author's right
to a fair trial differ from those explained by the Committee in paragraph
6.4 of the views.

Article 14, paragraph 1, of the
Covenant entitles everyone to a fair and public hearing by a competent,
independent and impartial tribunal established by law. Paragraph 3 of the
same article contains further guarantees for those charged with a criminal
offence. In the present context, one may recall article 14, paragraph 3 (e),
which guarantees that an accused shall have the right, in full equality, to
examine or have examined, the witnesses against him and to obtain the
attendance and the examination of witnesses on his behalf under the same
conditions as witnesses against him. In my opinion, however, the issue in
this case is not whether the principle of equality of arms was violated with
respect to hearing the author's son Wayne as a witness, but whether his
examination was compatible with the principles of due process of law and
fair trial. It must be recalled first that, when Wayne was heard as a
witness by the court, he was merely 13 years of age, and he was expected to
truthfully recount an event which had occurred nearly three years earlier,
when he was 10, and which might seriously incriminate his father. Secondly,
measures of coercion were employed against him to make him testify and
otherwise comply with his obligations as a witness.

Although most legal systems
provide for the possibility of hearing children as witnesses in court, it is
generally understood that particular care must be exercised in view of the
vulnerability of children. Measures must be taken to ensure that a child is
stable and mature enough to withstand the pressures and the stress that
witnesses in a criminal case may encounter. If a hearing is considered
necessary and may be carried out without risk for the child's well-being,
every effort must be made to conduct the hearing in as considerate and
sympathetic a way as possible. In the same context, it should be recalled
that article 24 of the Covenant entitles every child to such measures of
protection as are required by his status as a minor.

There is ample reason to believe
that when Wayne testified in court, he had acquired a degree of maturity
that calling him as a witness was as such permissible. However, an
aggravating factor was that he was the accused's son and, moreover, the only
person whom the prosecution could adduce as witness to prove the guilt of
Mr. Campbell. Some legal systems exempt individuals from the obligation to
testify against close relatives, the rationale being that an obligation to
testify would be inhuman and thus unacceptable. Due to the lack of a
generally recognized principle in this respect, however, I cannot rule out
as inadmissible the hearing of Wayne as a witness simply because he was the
son of the accused.

The case file contains a letter
written by Wayne, in which he states that he was the "crown evidence" and
gave a statement against his father in court. At that time, he was 10 years
old. He was frightened and believed that his father was the cause of
everything, and he was upset with him then. In respect of the trial, he
mentions in his letter that he told the court that it had been his father
who had thrown the oil on his mother and lit the matches; at that point, he
stopped talking, and the judge ordered him taken into custody. He spent one
night in the central police lock-up. Scared, he planned on changing his
statement, but the judge scared him even further. He thought that if he
changed his statement, he would be sent to prison; this is when he "gave
evidence against Dad".

Testimony in a court of law is
civic duty and all legal systems provide for certain coercive measures to
guarantee compliance with that duty. Subpoena and imprisonment are the most
common coercive measures and should be used for the equal benefit of the
prosecution and the defence, whenever deemed necessary for the presentation
of evidence to the jury which, on the basis of such evidence, must determine
guilt or innocence of the accused. In its views, the Committee observes that
the detention of witnesses is an exceptional measure, which must be
regulated by strict criteria in practice and in law, and that it is not
apparent that special circumstances existed in the author's case to justify
the detention of a 13-year old. For me, it is difficult to imagine
circumstances that would justify a child's detention in order to compel him
to testify against his father. In any event, this case in no way discloses
such special circumstances; the judge therefore must be deemed to have
violated the principle of due process of law, and the requirements of a fair
hearing under article 14, paragraph 1. The violation was in fact the
violation of the rights of a witness, but its negative impact on the conduct
of the trial was such that it rendered it unfair within the meaning of
article 14, paragraph 1, of the Covenant.